Scholzel v Scholzel

[2012] NZHC 3148

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2012-442-152 [2012] NZHC 3148

UNDER  the Domestic Violence Act 1955

IN THE MATTER OF     an application to appeal out of time a decision of the Family Court at Nelson

BETWEEN  HELMUT SCHOLZEL Applicant

ANDKAREN SCHOLZEL Respondent

Hearing:         On Papers

Counsel:         B A Fletcher for Applicant

N A Ironside for Respondent

Judgment:      29 November 2012

JUDGMENT OF SIMON FRANCE J

[1]      On  1 November 2011  the  respondent  obtained  without  notice  temporary orders in relation to protection, occupation and furniture.  The applicant applied for a review of those orders.  A hearing took place on 20 December 2011, and judgment was issued on 8 February 2012. The applicant was unsuccessful.

[2]      A fixture for the substantive hearing of the orders was scheduled for 22 and

23 March 2012.  The applicant deposed he did not immediately file an appeal against the unsuccessful review because of the proximity of the substantive hearing. However, that fixture did not proceed.  Accordingly, on 23 April, through counsel, the applicant filed an appeal, an application for leave to appeal out of time, and an

affidavit deposing as to the reasons for the delay, by then being 33 working days.

HELMUT SCHOLZEL V KAREN SCHOLZEL HC NEL CIV 2012-442-152 [29 November 2012]

[3]      On  30 April,  so  one  week  later,  counsel  for  the  respondent  filed  a memorandum seeking directions about the appeal, and whether leave was to be determined  separately.    In  that  memorandum  it  was  indicated that  a fixture for

11 June had now been allocated.

[4]      On 1 May Joseph Williams J issued a Minute indicating that the matter of leave would be determined separately from the appeal proper, but a teleconference would be convened if necessary.  On 2 May the respondent accordingly filed a notice of opposition to the application for leave to appeal out of time.  On 4 May, senior counsel now acting for the applicant filed a memorandum in response, requesting adjournment of the application to appeal out of time sine die, pending the substantive hearing. The matter was adjourned.

[5]      The substantive hearing took place as scheduled, and judgment issued on

6 September 2012.      On   16 September   counsel   for   the   respondent   filed   a memorandum “seeking directions” as to whether the applicant’s application for leave to appeal out of time was to be discontinued.  On 10 October 2012 counsel for the applicant filed a memorandum in response withdrawing the application to appeal out of time.  He observed that despite being solicitor of record, he had not received the notice of case management conference (issued 21 September presumably in response to the memorandum of respondent’s counsel) nor the 16 September memorandum of counsel for the respondent.

[6]      As  a  result  of  the  memorandum  of  10 October  the  proceedings  ended. However, the respondent seeks costs.

[7]      The respondent claims 2B scale costs, said to be $4,900 plus disbursements. These are advised to be less than the actual costs.   The figure of $4,900 is arrived at by applying step 2 (commencement of defence) and step 4.10 (filing memoranda) from Schedule 3.  However, those steps apply in relation to a trial that proceeds. This is an application to appeal out of time, and did not proceed.     For both reasons the scale costs that have been claimed are inapt, and produce a sum wholly out of proportion to the proceedings involved.

[8]      My assessment is that both memoranda of the respondent were somewhat premature.   Urgency, if any, lay with the applicant, but I accept that ultimately a memorandum would need to be filed by the respondent.   I am unclear why the

16 September   memorandum   was   filed;   there   appears   not   to   have   been

communication with the applicant’s counsel to see what was intended.

[9]       In my view all that can be justified is a simple memorandum, and a notice of opposition to leave to appeal out of time. No fixture was ever allocated for that application, and research should not have been required to identify the grounds of opposition to a grant of leave to extend an appeal period.

[10]     In accordance with the normal rules, an award of costs is appropriate. An application for leave to appeal out of time was filed, and ultimately abandoned or withdrawn. It was reasonable for the respondent to file a notice of opposition and one memorandum.  However, neither step involved any complexity, and I accept the submission of counsel for the applicant that a category 1A rating is appropriate.

[11]     Assessing matters as best I can, I consider 0.3 a fair assessment and so award costs of $375.   Disbursements of $95.49 are confirmed.   The costs of the costs

memoranda should lie where they fall.

Simon France J

Solicitors:

B A Fletcher, Partner, Gascoigne Wicks, Blenheim, email:  [email protected]
N A Ironside, Ironside Law Limited, Nelson, email:  [email protected]